In Focus: What Does Unwinding DACA Mean for HR?

11 Sep 2017 4:56 PM |
Anonymous

Attorney General Jeff Sessions announced on Sept. 5 that the federal government will end the Deferred Action for Childhood Arrivals (DACA) program—which provided deportation relief and work permits to nearly 800,000 undocumented immigrants who came to the United States as children.

Though new applications for the program will no longer be accepted after Sept. 5, the program will have a six-month wind-down period. During this time, pending applications will still be processed and some current DACA beneficiaries will be eligible to renew their work permits.

DACA was initiated through a 2012 executive action by President Barack Obama. So-called Dreamers could receive a renewable two-year deferral under the program if they met certain age, educational and criminal background requirements.

"The Department of Justice has advised the President and the Department of Homeland Security [DHS] that DHS should begin an orderly, lawful wind down, including the cancellation of the memo that authorized this program," Sessions said.

"We have long said that the best way to address reforms to our nation's outdated immigration system is through legislation," said Lynn Shotwell, CFGI's executive director. "Today's announcement of the anticipated end to the DACA program offers fresh proof of the need for Congress to act—and it gives them time to do just that."

"Denying work authorization to people who grew up and were educated in the United States would have a significant negative impact on employers who count on these talented employees," said Mike Aitken, SHRM's vice president of government affairs. "Our economy depends on these employees to grow their operations and create more U.S. jobs."

HR professionals may be wondering what will happen to Dreamers' work permits now that the program is coming to an end. Here are the key points they should note:

DACA beneficiaries will not be affected until after March 5, 2018—six months from the date of the announcement.

No new DACA applications will be considered, but applications filed by Sept. 5 will still be processed.

Current DACA recipients whose permits expire between now and March 5, 2018, have until Oct. 5 to apply for renewal.

"I want to be clear that no new initial requests or associated applications filed after today will be acted on," DHS Acting Secretary Elaine Duke said in a Sept. 5 press release. President Donald Trump said in a statement that he is looking forward to working with Republicans and Democrats and will "resolve the DACA issue with heart and compassion—but through the lawful democratic process."

The decision to unravel DACA leaves hundreds of thousands of immigrant workers in legal limbo. Nearly 700,000 of the almost 800,000 current DACA recipients are legally employed, according to a report issued by immigrant advocacy groups FWD.us and the Center for American Progress. The report predicted that about 30,400 DACA recipients per month would see their work authorizations expire. Ray Perryman, an economist in Waco, Texas, predicted that repealing DACA will deepen existing labor shortages for employers. Employers may also face legal dilemmas, as they can't lawfully continue to employ Dreamers after their work permits expire, said Maria Echaveste, a senior fellow at the Center for Latin American Studies at UC-Berkeley. But she noted that employers may also face discrimination charges—particularly in employee-friendly states like California—if they terminate such workers. "It would behoove [employers] to be very careful and cautious," she said.

The six-month wind-down period is intended to give Congress time to pursue immigration reform if it so chooses, according to Sessions. He said Obama's executive action that created the DACA program was unconstitutional. "[T]he executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions," he said. House Speaker Paul Ryan, R-Wis., had urged Trump not to end the program immediately. Ryan called the program "an attempt to create law out of thin air," but he anticipates that Congress will act on the issue.

In June, a group of 10 state attorneys general threatened to sue the Trump administration if it didn't rescind DACA by Sept. 5. The coalition is being led by Texas Attorney General Ken Paxton and includes attorneys general from Alabama, Arkansas, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Texas and West Virginia, Tennessee was initially part of the collation but recently backed out.

New York Attorney General Eric Schneiderman and Gov. Andrew Cuomo announced plans on Sept. 4 to file a lawsuit if Trump ended DACA. "Dreamers are Americans in every way," Schneiderman said in a statement. "They played by the rules. They pay their taxes. And they've earned the right to stay in the only home they have ever known." Some 40,000 New Yorkers are protected under DACA, according to the statement.

Washington Attorney General Bob Ferguson issued a similar statement. "If President Trump follows through on his reported decision to cancel DACA after a six-month delay, the Washington Attorney General's Office will file suit to halt this cruel and illegal policy and defend DACA recipients," the statement said.

Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.